Wiretap case against Fall River resident dismissed after phone erased

Friday

Apr 11, 2014 at 11:36 AMApr 11, 2014 at 5:52 PM

Fall River police immediately issue statement that an outside company will investigate erasure.

Brian Fraga Herald News Staff Reporter @BfragaHN

FALL RIVER — The illegal wiretap case against George Thompson was dismissed Friday after prosecutors said they did not have enough evidence to proceed because someone erased Thompson’s iPhone while it was in police custody.

Minutes after the dismissal, the Fall River Police Department issued a statement that it had hired Ken Bell & Associates, a private and external forensic company, to investigate how the iPhone had its data erased on Jan. 8, when it was supposed to be in the police department’s evidence vault.

The results of that investigation, as well as the police department’s Office of Professional Standards’ internal probe, will be released to the public, Fall River Police Chief Daniel S. Racine said.

The Fall River Police Department, Racine said, also recognizes that it is legal to openly record a police officer or any other person in public. The department has issued a new policy that all alleged wiretap violations will require a supervisor to be involved, and that only in extraordinary circumstances will someone be arrested.

Thompson — who said he plans to hire a computer company to conduct an independent forensic investigation — was skeptical of Racine’s statement.

“Then what (Racine) is saying is that I shouldn’t have been arrested,” Thompson said. “I don’t really have much faith in the police department right now and their investigation.”

Thompson’s case — he was arrested after recording a Fall River police officer with his iPhone — generated national media attention. Two representatives from copblock.org — a website that highlights abusive police practices — traveled from New Hampshire to attend Friday’s motion hearing. They were temporarily refused entry into the courthouse when security officers thought they were being disruptive.

“We’re here to support George and to help him hold officials accountable through the court of public opinion,” said Pete Eyre of copblock.org, who, along with other Thompson supporters, walked outside the courthouse recording court security personnel and police officers. They were allowed back inside the courthouse after about 15 minutes.

“This just shows the arbitrary nature of what they did,” Eyre said.

Meanwhile, Andrew Quemer and Maya Shaffer, two bloggers from the Bay State Examiner — an independent news website — said they were not allowed to photograph Thompson’s hearing despite having the requisite paperwork. They said court officers physically removed them from the courthouse.

“Basically, we were targeted and violently removed,” Shaffer said.

Thompson, who also wore a copblock.org T-shirt, said his rights had been violated.

“This is just the beginning,” he said. “I am far from done with this case.”

On Jan. 6, Thompson used his iPhone to record Fall River Officer Thomas Barboza, who Thompson alleges was yelling and cursing on his cellphone during a work detail outside Thompson’s Locust Street house.

Barboza, in his police report, said Thompson was secretly recording him with a phone hidden under his left hand, but Thompson said he was recording the officer in plain sight the entire time. In Barboza’s report, the officer writes that at one point, Thompson told him, “That’s right, I’m recording you.”

Thompson said Barboza became irate when he spotted Thompson recording him from his front porch. Barboza allegedly ran up to Thompson’s house, called him a “(expletive) welfare bum” and threatened him. Barboza, according to Thompson, also said: “It’s a federal offense what you’re doing. You can’t videotape me.”

Racine has said that Barboza admitted his conduct was below professional standards and he received a one-day suspension and a 15-day prohibition from street details.

In his motion to dismiss, defense attorney Daniel Igo said the First Amendment grants citizens the right to record police officers in public. Despite the officer’s claims, Igo said the facts in Barboza’s own police report show that the officer was aware that Thompson was recording him on his phone.

Two days after Thompson’s arrest, the iPhone was reset to factory default settings — erasing all of its contents. At the time the phone was reset, Fall River police Sgt. Kevin Medeiros wrote in a supplemental police report that the phone was in the police department’s evidence vault and not in anyone’s possession.

In his report, Medeiros speculated that the iPhone could have been reset remotely through the iCloud. Thompson said his iPhone was not on any data plan and was not connected to the iCloud or the Internet.

During Friday’s motion hearing, Assistant District Attorney Robert Kidd recommended the case be dismissed because the iPhone’s video was missing. He said the case lacked enough evidence to survive not being thrown out at trial.

“As a result, the commonwealth cannot proceed in this matter,” Kidd said.

Meanwhile, Igo said Barboza never had probable cause to arrest Thompson.

“The motion to dismiss would have been successful,” said Igo, who noted that the U.S. Supreme Court, in the 2011 Glick case, said it was unconstitutional for the state to prosecute people under the Massachusetts’ wiretap law for recording the police in public.

After the Glick ruling, Racine said the Fall River Police Department issued a training bulletin “clearly informing” personnel that recording a police officer — as long as it is open and conspicuous — is legal.